Pain and suffering is a type of general damage. General damages compensate you for all the non-economic damages you have sustained. Pain and Suffering damages are also usually bigger than your special damages if you have more than a soft tissue type case. If you have soft tissue only injuries, the trend has been for adjusters to not offer but a few thousand dollars over medical bills. So in soft tissue cases, you most likely won’t see adjusters offering pain and suffering amounts that exceed your medical expenses.
Pain and suffering will always be the biggest disagreement between you and the adjuster. It is the largest “component” of the value of your claim and it is also the most subjective. Unlike special damages, where you have receipts and estimates, pain and suffering is totally reliant on you telling your story in a compelling and sympathetic way. Pain and suffering is entirely related to the nature and type of your injuries.
As a general rule, the adjuster will think the greater your medical expenses and the more severe your injuries, the greater your pain and suffering. The rationale is the more you were hurt the more your medical treatment lasts and costs. The length of your medical treatment and its total cost will be the single biggest value driver the adjuster uses to come up with a pain and suffering number. In the majority of claims the adjuster will disregard any pleas for pain and suffering in your Demand Letter and instead use the data in your medical records to come up with the pain and suffering component of his/her offer.
Chances are if you have done any research before coming to ClaimClinic, you have heard people talk about a formula for multiplying your medical bills by a factor of 2 to 5 to come up with the total value of your claim. There are still a few adjusters left that will look at multiples of your medical bills to figure out your claim’s value. (Remember, the majority of insurance companies are now using claims software). You can try asking the adjuster if they subscribe to this methodology. If they say no, you can hold them to their answer later on and argue for a pain and suffering number not proportionally attached to your medical bills. Some adjusters who use formulas will back out diagnostic expenses, costs for x-rays and MRI’s for example.
Injury Type
Obviously the more severe your injuries, the more your case is worth. You need to scrutinize your medical records to identify every complaint of pain, every symptom, and every diagnosis. Unfortunately adjusters will not rely on your word or statements describing your injuries and pain. It must be in the medical records. If it is not in your chart, it doesn’t exist.
Different kinds of injuries are discussed at length in the Injury Types section of this Module.
Factors That Affect Pain & Suffering Value
The key to maximizing the pain and suffering component of your claim is to identify and present as much objective evidence as possible to the adjuster. The following are some things to look for in your claim’s documentation to offer the adjuster tangible circumstantial evidence of your pain and suffering.
Length of Hospitalization & Treatment
The length of time from your date of accident until the time your doctor says you are all better (i.e. released from care) or the date in your medical records where you say you are all better will set the length of time you can argue you suffered with pain and discomfort. You want to identify your first date of treatment, your very last date of treatment, and the number of days between. You will see when it comes time to write your Demand Letter that lengths of treatment are identified where ever possible.
Typically the longer you treated, the more hurt you were. NOTE: You must be careful in minor impact soft tissue (MIST) cases to not over-treat with chiropractors or physical therapists. Adjusters usually don’t want to see any more then 4-6 weeks of treatment with these types of providers and expenses not exceeding $4,000 to $6,000. If you blow past these “adjuster guidelines,” the adjuster will think you are “bill building,” or purposefully over treating to build up higher special damages (medical expenses) in hopes of driving up your claim’s value.
Like Length of Treatment, if you are hospitalized overnight or for multiple days, this will be an indicator of increased pain and suffering.
Pain Scales
Many of your medical providers will have pain scales or diagrams on their intake forms. These are the areas where you are asked to mark body parts that are in pain and/or to rate your pain on a scale of 1 to 10. Doctors, physical therapists, and chiropractors may also ask you to put a number on your pain when they are talking to you. They will then note your answer in your chart.
What we should see in your records is that your pain ratings start out very high and then slowing decrease over the course of your treatment. This is evidence, albeit subjective evidence because it is you telling someone, of your pain levels and duration. If your pain levels decrease and then spikes back up, you should think about writing a paragraph in your Demand Letter explaining what was occurring at that time.
Prescription Usage
Taking prescription medication is good, concrete evidence you are in pain unless you have some sort of prescription drug habit. When analyzing your medical records, you need to note:
- Medication Type you are taking, such as pain relievers, muscle relaxers, etc – this will correlate with the pain symptoms your doctors are trying to address;
- Medication Dosages you are taking. Stronger dosages indicate greater pain and suffering.
- Length of Use will give you some correlating evidence to show the adjuster how long you were in pain. You can state how long you took the prescriptions and you can also use evidence of re-fills.
Non-Pain Damages
In addition to the pain you feel from your injuries, you also get money for the suffering that goes along with your pain. This can be such things as loss of sleep, loss of appetite, weight gain or loss, adverse reactions to the medicines you are being prescribed. For example, many people can get very nauseous from pain medication but have no choice but to take them. They decide knocking back the pain they are feeling is worth the extreme nausea.
Emotional Distress
You are also entitled to money for your emotional distress, or suffering, in addition to the pain you have experienced. Emotional distress includes such things as depression, stress, anxiety, embarrassment, strain on family relationships and friendships. These are going to be difficult to prove for purposes of trying to settle your claim without filing a lawsuit. Adjusters normally ignore these arguments and it is only when a jury hears your story directly from your mouth and from witnesses who know you, that these types of damages become a reality. Nevertheless, if you are experiencing these types of problems, you should report them to your doctor and hope they make an appearance in your medical chart so that the adjuster at least sees them getting reported by a physician.
If you are seeing a therapist, psychologist, or psychiatrist, you may be tempted to use these records to document your emotional distress. This is ultimately your call whether you are comfortable showing a stranger this type of information. These types of records are generally protected/privileged, meaning insurance companies and their attorneys cannot get these records without your consent or a court order. The reason being that the law does not want a patient worrying about whether someone will ever see what they share with a mental health professional. Only by having records remain strictly confidential will a patient feel comfortable sharing their thoughts with a mental health professional. If you get and give the adjuster your mental health records, you may open the door for the insurance company to get ALL of your mental health records in litigation, assuming your case does not settle. If you decide to send the adjuster mental health records that document your emotional suffering, you should only send him/her the entries that pertain to the accident. Redact all non-related notes and don’t send pages of the chart that aren’t relevant. Remember, you are in control of your records when handling your own pre-suit settlement negotiations and get to “cherry pick” which records the adjuster gets to see.
Loss Of Enjoyment of Life
You are also entitled to compensation for the parts of life you missed because of your injuries. Things like missed family events, missed vacations, or other “memorable” events you missed. This is discussed in more detail in the Duties Under Duress section of writing Demand Letters.
Duties Under Duress
Duties under duress refers to has activities you had to, and did perform at home, work and recreation which were made more difficult due to the injuries from the accident. This is discussed in greater detail, along with more examples, over in the Duties Under Duress section of writing Demand Letters.
Techniques to Quantify Pain & Suffering
Per Diem
This is where you argue that your pain and suffering is worth so much money per day that you were in pain. For example, you could argue to the adjuster that your pain and suffering was worth at least as much as a minimum wage hourly rate x 24 hours x # of days in pain. You can throw in for good measure that no one else would want to have that job – of being hurt and getting minimum wage.
You can use the pro rata method as broadly or as granular as you want. Using it broadly, you figure out how much money you want to assign to each day you were in pain and then simply multiple days by that amount.
You can get more granular by using different dollar amounts for mild, moderate, or severe pain. You can then look at your medical records and pain scales to figure out how many days you were in severe pain, moderate pain,and then mild pain.
